The following is a quote from an appeals court case upholding the termination of a fire captain who refused to answer questions during a disciplinary proceeding: “(Captain X) argues that his failure to respond to specific inquiries by the hearing panel was an invocation of (his...
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The Grayest of Gray Areas
While much of the law surrounding Garrity may appear to involve shades of gray, hopefully this overview has helped to clear up some of the confusion. However, there remains one big problematic gray area. It involves the question of whether an employee in a Garrity situation has been “compelled” to answer questions for purposes of immunity attaching to any statements made. In the Garrity case, the officers were questioned as part of a formal investigation and ordered to answer questions. What if they had been asked the same questions in a less formal setting? Let’s look at a few cases, each involving a firefighter who is accused of stealing money from an intoxicated patient on a medical run:
Case 1 – The firefighter is notified of the allegations and instructed to appear with a union representative and/or an attorney before a department investigator to answer questions. As soon as the questioning begins, the firefighter states that he wishes to invoke Garrity and his 5th Amendment right to remain silent. Thereafter, the investigator (a ranking officer) orders the firefighter to answer questions.
Many authorities conclude that for Garrity rights to be invoked, the employee must announce that he or she wants the protections under Garrity, wants to exercise his or her 5th Amendment rights or wants to remain silent. Case 1 is an example of an employee doing exactly that: invoking Garrity. Any statements that are compelled after invoking Garrity may be used only for administrative investigation purposes, not for criminal prosecution.
Case 2 – The firefighter is notified of the allegations and instructed to appear with a union representative and/or an attorney before a department investigator to answer questions. At the beginning of the interview, the investigator reads an admonishment to the firefighter advising him that he is accused of violating department regulations by taking money and ordering him to answer the questions truthfully or be subject to discipline for insubordination.
There is a split of opinion on whether Garrity issues can arise without the employee formally raising his or her 5th Amendment rights. Some courts have held that where a public employee is compelled to answer questions under penalty of discipline for insubordination, termination or other serious consequence, and criminal consequences may result from the answers, the employee does not need to raise Garrity prior to answering. It is the act of compelling the employee that triggers Garrity, and immunity attaches to such a compelled statement.
Case 3 – Later that shift, a district chief asks the firefighter whether he stole the money. In this case, it is not clear whether the firefighter is being compelled, and thus it is not clear whether immunity protection will attach to any statements given. The questions become whether the employee subjectively believes he or she was being compelled to answer questions and whether that belief was objectively reasonable. It is important that firefighters know their rights and fire department supervisors understand potential problems in questioning employees under these circumstances.
Case 4 – The firefighter is notified of the allegations and instructed to appear with a union representative and/or an attorney before a department investigator. At the beginning of the interview, the investigator reads an admonishment to the firefighter advising her that she has the right to remain silent; that she is not being compelled, ordered or required to answer questions; and that any answers she provides must be given voluntarily. He also reads her a Miranda Warning and asks the firefighter to sign a Miranda Rights Acknowledgement Form. He then asks her questions about the incident.
In this case, Garrity specifically does not apply because the statements are not compelled. Any statement made by the firefighter in this case can be used against her in a criminal case. On the other hand, if she refuses to answer, it cannot be used against her in either the criminal case or a department disciplinary proceeding.